Lawyers cautioned in wake of Paradise Papers scandal
With multinational tax avoidance in the spotlight, lawyers need to be more vigilant than ever when taking on clients, according to a business law expert.
Over 13.4 million documents on offshore tax structures were publicised in the Paradise Papers leak earlier this week – the largest document leak in history.
Of those files, 6.8 million came from Appleby, a law firm that specialises in providing offshore legal advice to multinational companies and high-net-worth individuals.
Appleby was founded in Bermuda in the 1890s and has offices in the British Virgin Islands, the Cayman Islands, Guernsey, the Isle of Man, Jersey, Mauritius and the Seychelles.
The files revealed details the financial affairs of numerous multinational companies, including Apple, Glencore and Facebook, politicians such as Justin Trudeau, and even Queen Elizabeth II.
Dr Antony Ting, an associate professor in the business law department at the University of Sydney Business School, told Lawyers Weekly offshore structures can be difficult to police, as not all of them are illegal.
“Law firms have been doing these kinds of activities for many, many decades, and the important thing to note is that when a company is set up in a so-called tax haven country, it doesn’t necessarily mean that there is any tax avoidance or illegal activities there,” Dr Ting said.
“There are legal, commercial reasons why companies or individuals would love to set up companies in a tax haven.
“Based on research and also news reports, now we know that sometimes very successful tax avoidance structures do not need to have any tax haven countries at all, so it’s not a necessary component in a tax avoidance structure.”
However, Dr Ting warned law firms that they could be exposed to serious reputational damage if their clients are found to have used illegal tax structures, particularly as cyber threats make their data more vulnerable.
“Based on the past few years’ experience, the media exposure and so on, law firms – and, for the same reason, professional firms like the big four accounting firms – they are now much more vigilant in what we call risk management, so before they accept an engagement they will look at all these potential risks and if the client is too high-risk, then they needn’t sign up to accept the client,” he said.
“In practice, it is quite difficult for a firm to actually investigate what the client is using the company for. So there are practical limitations [to] how much law firms or accounting firms can do, but I think they are trying their best to minimise the risk.
“I doubt whether these kinds of leaks will result in complete closure of these kinds of activities, because as I said there are legitimate commercial reasons for companies or individuals to set up companies in tax haven countries.”
Appleby said in a statement that it had been a victim of a cyber attack, rather than an internal leak. The firm said there was no evidence that it had done anything illegal.
“While there were no allegations of any wrongdoing on the part of Appleby, there were some allegations of perceived failings in our business practice standards,” the firm said.
“Operating in highly regulated jurisdictions, we face an ever-increasing level of compliance obligations. Our overriding objective is to have the procedures and policies to ensure that we have 100 per cent compliance with our obligations.
This is a major undertaking and Appleby invests significantly in compliance professionals and processes, not only to put in place the requisite procedures and policies but also to review constantly our current practices to see where there can be improvement.”
However, compliance does not equate to integrity, according to leading UK anti-corruption lawyer Monty Raphael QC.
Speaking at the 2017 International Bar Association (IBA) conference in Sydney last month, Mr Raphael said lawyers have an ethical obligation to ensure they do not support white-collar crime.
“In the years that I have been concerned with getting people to adhere to anti-money laundering procedures and anti-corruption procedures, people are content with doing the minimum,” he said.
“Remember, the word ‘compliance’ doesn’t mean integrity. It means doing the absolute minimum that the state will allow you to get away with.”
“If you continue to do the minimum, you will have difficulty facing yourself and your children and your grandchildren, and you will have difficulty facing your creditors when your firm is damaged by an irreversible reputational harm. If you carry on like this, that’s what will happen.”